In ‘The Dispute Tree and the Legal Forest’ (2014) 10 The Annual Review of Law and Social Science 105, Albiston, Edelman and Milligan propose replacement of Miller and Sarat’s dispute pyramid with a dispute tree. They further suggest the stages of the emergence and transformation of disputes – that is, naming, blaming and claiming (Felstiner W et al, “The Emergence and Transformation of Disputes: Naming, Blaming Claiming” (1980-81) 15 (3-4) Law and Society Review 631) – be conceptualised as non-linear and fluid.
Why a Dispute Tree?
The dispute pyramid was proposed by Miller and Sarat in: Miller RE and Sarat A, ‘Grievances, Claims, and Disputes: Assessing the Adversary Culture’ (1980) 15 Law and Society Review 525:
Albiston, Edelman and Milligan argue the metaphor of a tree with many branches better reflects the non-linear and dynamic nature of dispute resolution as well as the legal and non-legal means by which people may seek to resolve disputes. They propose the dispute tree depicts that endeavours may be made to resolve disputes via various formal and informal means at the same time, that is, each different means that is pursued is represented by a separate branch on the tree. Some branches may bear fruit (substantive outcomes such as compensation) or flowers (symbolic results). Other branches may wither, their growth may be stunted or they may never bear fruit or flower. Albiston, Edelman and Milligan further argue the metaphor of a tree opens up the broader metaphor of the dispute tree existing within a forest and that this better represents the social environment in which disputes emerge and transform.
The Process of the Emergence and Transformation of Disputes
Albiston, Edelman and Milligan suggest the naming, blaming and claiming dispute process should be viewed as non-linear and fluid. They argue this is consistent with anthropological models of the dispute process which “allowed for stages to occur out of sequence and for individuals to move back and forth across stages”. (p 110) Notably, however, they were not the first to suggest this. Galanter had earlier argued for a fluid, labile and moving view of the process of the emergence and transformation of disputes. He suggested individuals could move from claiming “back to naming and blaming, to changing perceptions of injury and to changing attributions of responsibility for causing injury and providing remedy”: Marc Galanter,‘Access to Justice in a World of Expanding Social Capability’ (2010) 37 Fordham Urb LJ 115, 124. A fluid, dynamic process for the emergence of disputes is arguably also consistent with Mayer’s argument that individuals utilise both engagement and avoidance strategies in naming, blaming and claiming. Those strategies ultimately define what is viewed as in conflict and what is outside it. (Mayer B, The Conflict Paradox: Seven Dilemmas at the Core of Disputes (Jossey-Bass, 2015) 105) In this sense, the avoidance and engagement strategies utilised by an individual contribute to the framing of the dispute. As individuals may move between different avoidance and engagement strategies it is possible that an individual may move back and forth between different stages of the dispute process as they refine or expand that part of the event they identify as injurious or who they blame for the injurious event (for example, because new information comes to light or because they decide to engage with conflict about a particular issue after initially employing avoidance strategies in relation to it).
The Dispute Pyramid or the Dispute Tree?
In the same article that he acknowledges the fluid, labile and moveable nature of the process of naming, blaming and claiming, Galanter gave a description of the dispute pyramid that accommodates the loss of many potential claims at each stage of the process: Marc Galanter,‘Access to Justice in a World of Expanding Social Capability’ (2010) 37 Fordham Urb LJ 115, 118. There is also arguably no reason that the pyramid metaphor cannot allow for matters to move back and forth between different stages.
Is the dispute tree really then a superior metaphor?
The Australian Dispute Resolution Research Network 